The Ninth Circuit calls Proposition 8 'unconstitutional'


Will the voice of the people ever be heard?
by Jennifer Monk
The 9th U.S. Circuit Court of Appeals decided that the people of California had no right to pass an initiative that limits marriage to one man and one woman.

"By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause," the Feb. 7 ruling read.

Twice the voters of California have voted to preserve marriage between men and women, and twice they have been challenged in the courts. The struggle to defend traditional marriage has endured for more than a decade:

2000 — If you remember way back in 2000, 61 percent of California voters passed Proposition 22, which defined marriage as between one man and one woman.

February 2004 — Gavin Newsom, the then-mayor of San Francisco, ordered his staff to begin performing so-called same-sex marriages, even though the law clearly prohibited them from doing so. After three weeks, the California Supreme Court issued an injunction enjoining the illegal marriages.

May 2008 — After numerous lawsuits filed in 2004 challenging Proposition 22 and four long years of litigation, the California Supreme Court declared that Proposition 22 violated the Equal Protection Clause of the California State Constitution.

November 2008 — Just a few months later, Proposition 8 was placed on the California ballot, once more asking voters to define marriage as between one man and one woman; it passed with 52 percent of the vote. Since that time, different parties have tried to strip the California voters of their power by overturning the measure. Hoping to avoid a judicial repeat of Proposition 22, the new measure changed the state constitution by way of an amendment.

February 2012 — The 9th U.S. Circuit Court of Appeals panel ruled that Proposition 8, a voter-backed initiative, violates the Constitution.

Defending voters
The issue of the constitutionality of Proposition 8 is certainly the crux of this case. However, there is also another important question at play here: who has a right to defend Proposition 8?

The question of who has a right to defend Proposition 8 has been at the center of the litigation since the governor, attorney general or any other named defendants refused to defend the initiative adopted by a majority vote of the people of California. 

After the official campaign proponents were granted the right to intervene in the district court, questions were raised as to whether they would have sufficient standing to appeal the case and ultimately take it to the U.S. Supreme Court.

Amid those concerns, Advocates for Faith & Freedom filed a petition to intervene on behalf of the county of Imperial and in defense of the law in order to provide a governmental defendant willing to ensure that the higher courts decide the case. When the district court overturned Proposition 8, it also denied intervention, or standing, to the county. Along with the official proponents, the county and its deputy clerk appealed the decision to the 9th Circuit.

On Jan. 4, 2011, the 9th Circuit denied intervention to the county of Imperial and one of its deputy county clerks for insufficient standing. However, the court left open the question of whether an elected county clerk, rather than just a deputy county clerk, would have sufficient standing. Meanwhile, Chuck Storey, who was elected as the Imperial County Clerk in November 2010, filed a petition to intervene in February 2011 saying his job would directly be affected by the overturning of Proposition 8. He also wanted to ensure that the people's vote was defended.

That brings us to the current time. The 9th Circuit issued its final ruling Feb. 8 declaring Proposition 8 unconstitutional, while at the same time determining that the official proponents of Proposition 8 have sufficient standing to defend the law, but denying County Clerk Chuck Storey the right to intervene.

What's next?
Ultimately, the official proponents of Proposition 8, along with County Clerk Chuck Storey, will seek review from the U.S. Supreme Court. 

"I took an oath of office to uphold the California Constitution, and Proposition 8 is part of the Constitution," Storey said.

We at Advocates contend that not only was the 9th Circuit in error for denying intervention to Clerk Storey, the decision to overturn Proposition 8 was also contrary to long-held constitutional principles.  This case is not only important for influencing nationwide law regarding marriage, but it is also important for the people of California to have their vote respected.

Monk is associate general counsel at Murietta-based Advocates for Faith and Freedom. For more information, visit

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Published, March 2012